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Nathan Dunlap's attorneys puzzle over next step for client

Death row reprieve may derail plans to challenge Colorado law

By Dan Elliott Associated Press

Posted:
06/07/2013 11:45:00 PM MDT

Updated:
06/07/2013 11:45:48 PM MDT

DENVER -- Attorneys for convicted killer Nathan Dunlap are puzzling over their next step in three potentially significant court cases after Colorado Gov. John Hickenlooper granted Dunlap an unprecedented temporary reprieve.

Dunlap's lawyers had plans for a novel legal challenge in district court and were pursuing a lawsuit and an appeal in other courts when Hickenlooper announced the reprieve on May 22.

If they're successful, the challenges could force the Legislature to rewrite state death penalty laws and require the state to go public with details of its execution methods. But with the reprieve in place, it's not clear whether those cases are moot.

"This idea of a temporary reprieve is not something we've seen in Colorado," said Jessica E. Yates, one of the attorneys representing Dunlap. "So we need to figure out what it means, and there's not really any Colorado precedent on that."

Dunlap was scheduled to be executed in August for the 1993 ambush slayings of three teens and a 50-year-old mother working in a Chuck E. Cheese restaurant in the Denver suburb of Aurora. A fifth employee was badly wounded.

The victims, all employees, were closing up the restaurant when Dunlap emerged from hiding in a restroom and shot them. Dunlap, then 19, had recently been fired from a job there.

Now 39, Dunlap apologized for the shootings when he asked Hickenlooper for clemency, which would have converted the death sentence to life without parole.

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Hickenlooper stopped short of that but put the execution on hold, saying he had doubts about the fairness of the state's death penalty system and about the state's ability to get the drugs required for an execution.

The reprieve could stay in place for at least 5½ years. Hickenlooper said he's unlikely to lift it, and he could remain in office until early 2019 if he is re-elected next year.

One of Dunlap's remaining legal battlegrounds is Arapahoe County District Court, where Dunlap has a hearing scheduled Monday before Judge William Sylvester. Sylvester is in charge of the original criminal case and scheduled Dunlap's execution for the week of Aug. 18.

Defense lawyers had planned to file an unusual motion in Sylvester's court arguing that keeping Dunlap on death row for the past 16 years amounts to cruel and unusual punishment, which is barred by the U.S. Constitution.

With the reprieve in place, Sylvester is now asking whether he still has jurisdiction.

In a motion this week, Dunlap's lawyers argued that Hickenlooper took the case out of Sylvester's hands. They also said they no longer plan to argue that Dunlap's long wait on death row is unconstitutional or to launch other challenges because they are no longer necessary.

In their own motion, prosecutors argued that Dunlap is still under the death penalty and that his execution has been delayed but not ruled out.

They said Sylvester still has jurisdiction and urged him to at least start considering issues the defense planned to raise so officials can move more quickly to execute Dunlap if another governor lifts the reprieve.

Also pending is a lawsuit filed by Dunlap's lawyers in Denver District Court that says, among other things, that Dunlap could be subjected to unnecessary pain -- amounting to cruel and unusual punishment -- because state execution laws don't mandate sufficient training, oversight or safeguards.

The judge has scheduled a July 9 hearing to discuss whether that lawsuit is moot.

Dunlap is also awaiting word on whether the state Supreme Court will consider his lawyers' argument that the Department of Corrections should have asked for public input in drawing up its lethal injection execution procedures. Two lower courts have ruled against Dunlap.

The appeal was filed before the reprieve and it's not known what effect the reprieve will have.

Separately, the American Civil Liberties Union sued the Department of Corrections in Denver District Court last month seeking the names of the drugs and details of the procedures it would use for an execution. ACLU officials said the public has a right to the information regardless of the outcome of Dunlap's case.

The Department of Corrections referred questions to the attorney general's office. The attorney general's spokeswoman said she could not comment.

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